Turning to the First to understand the Second

The First Amendment right to freedom of speech and the Second Amendment right to keep and bear arms are usually related only by their proximity in the Bill of Rights. But the connection actually runs much deeper. Courts are using standards from First Amendment law and applying them in Second Amendment cases.

In this case, the 5th Circuit considered the constitutionality of federal laws prohibiting federal firearms licensees from selling handguns to minors. The National Rifle Association and some 18-20-year-olds challenged the law as violating the Second Amendment.

The 5th Circuit used a two-step process in evaluating the Second Amendment claim. First, the appeals court reasoned that it must determine whether the Second Amendment protects the conduct at issue. Second, if the conduct is protected by the Second Amendment, the court must decide which standard of review to apply to the law. The three common standards of review in First Amendment law are strict scrutiny, intermediate scrutiny and rational basis. Strict scrutiny requires the government to have a compelling government interest, intermediate scrutiny requires a substantial interest and rational basis requires only a legitimate interest.

The appeals court found support for this two-step process from First Amendment free-speech law, in which courts often first ask whether certain speech falls into an unprotected category of speech, such as fighting words, true threats, incitement to imminent lawless action, obscenity, child pornography or defamation.

“Similar to the first step of our Second Amendment analysis, the first step in analyzing a First Amendment challenge is to determine whether the conduct (i.e. speech) in question is protected,” the 5th Circuit wrote. “In harmony with well-developed principles that have guided our interpretation of the First Amendment, we believe that a law impinging upon the Second Amendment right must be reviewed under a properly tuned level of scrutiny.”

It is not surprising that courts would use First Amendment analogues in deciding Second Amendment cases. The U.S. Supreme Court has developed an intricate — if less than totally coherent — body of First Amendment free-speech law for decades upon decades. But the Supreme Court has only recently begun developing its Second Amendment jurisprudence.

In District of Columbia v. Heller (2008), the Court ruled that the right to keep and bear arms was an individual right rather than a collective right of a “well-regulated militia.” Then, in McDonald v. City of Chicago (2010), the Court ruled this individual right to keep and bear arms was so fundamental that it also applied against regulations by state and local governments. Recall that the Supreme Court first ruled the First Amendment right to free speech applied to state and local governments as well as federal way back in 1925 in Gitlow v. New York.

Lower courts hearing Second Amendment cases now must determine which standard of review to apply to various laws restricting the sale, possession or use of firearms. The 5th Circuit determined there was “longstanding, historical tradition” of limiting who possessed firearms and found the federal laws did not violate the Second Amendment.

Other courts could reach different conclusions in different Second Amendment cases. But many courts will refer to First Amendment free-speech law and its use of different standards of review.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.